December 11, 2012 | By Maira Sutton

As Digital Rights Advocates Mobilize Around the TPP Negotiations, Process Becomes Even Less Transparent

The 15th round of Trans-Pacific Partnership (TPP) agreement negotiations in New Zealand concluded this week, locking out civil society participation in an unprecedented way. The TPP is a trade agreement between eleven Pacific nations and it covers a wide range of regulatory issues including transnational investment, services, tobacco, and textiles. The chapter that EFF and other digital rights groups around the world find alarming covers intellectual property. EFF is also looking into issues of free flow of information and cross-over issues that may appear in the ecommerce and service chapters. Based upon what we have seen from leaked version of the agreement, the TPP contains language that could effectively pressure ISPs to become Internet cops and criminalize the distribution of DRM-circumvention tools even for fair uses, impede parallel importation of copyrighted goods, among others.

After participating in previous rounds, we could not have imagined that the process could become any less transparent. Amazingly, it did. Previously we had only been allowed to interact with trade negotiators in the halls of the venue during the 10-day-long meetings, or during a stakeholder tabling event. In the Auckland round, we found that the tabling event was cancelled and that we would not be let into the venue at all, except the single day when stakeholders are allowed to give 15-minutes presentations—which took place on the same day the delegates were given to rest and enjoy tourist attractions around Auckland. Truly, the least they could have done was to send a public notice of these changes ahead of the negotiations. Civil society groups do not have the resources to risk sending advocates across the world to participate in these crucial meetings in the limited way that we can, only to be locked out of the venue at the last minute.

As scheduled, the stakeholder events took place on Friday. Public interest groups, advocates, and corporate representatives gave 15-minute presentations in four different rooms grouped by topic. Two EFF representatives from the International Intellectual Property team presented that day in the copyright room. Carolina Rossini presented on the importance of considering the free flow of information on the Internet, when regulating e-commerce, cloud-based services, and any requirements for server locations, pointing out the need to balance such topic with privacy—a human right. Maira Sutton discussed some specific ways TPP would lead to digital censorship, and explained the overarching, problematic assumptions underlying the provisions being pushed for by the content industry. 

Other members of the Stop the Trap Coalition presented as well. Steve Anderson of OpenMedia.ca and who coordinates the Coalition, described how TPP threatens to undo the years of negotiations over the national Canadian Copyright Law (also known as C-11), which carries a more balanced approach to copyright enforcement. In addition, he showed the audience how over 121,000 users have signed the Stop the Trap petition, and went to read a few individual users' comments about their concerns with the agreement. Susan Chalmers of InternetNZ, Ellen Broad of the Australian Digital Alliance, and Francisco Vera of ONG Derechos Digitales, also highlighted problems with the TPP and its effect on digital rights.

That afternoon at the stakeholder briefing, lead negotiators for each TPP country sat at a panel to take questions from stakeholders and the press. Chalmers from InternetNZ asked whether copyright exceptions and limitations would be discussed, but after stating that they are an "important matter for all of us", none of them seemed to know the answer. Later on, Anderson from OpenMedia.ca asked the Canadian negotiator whether she could commit not to override Canada democratically legislated C-11 copyright reform bill following the ratification of TPP. Her somewhat convoluted response indicated that she could not make any promises. Finally, Carolina Rossini asked what is being considered for the free flow of information provisions, alerting this should be treated as a cross-chapter issue. The Australian lead said that privacy is being considered and the Chilean lead commented the delegates are aware of how complex is regulation of information flow. 

One representative of the generics pharmaceutical sector asked when, given that the leaked IP chapter from February 2011 allowed for improved public input and discussion, the current draft of the text would be released. After a period of awkward silence from the panel, the lead Kiwi negotiator went on an unrelated tangent about the necessity for transparency. At these stakeholder briefings, the lead negotiators have never acknowledged the legitimacy of the leaked versions of the TPP.

During the week, there were several small demonstrations outside the venue, but the large national rally was on Saturday. It brought together broad range of people who oppose the agreement, including librarians, environmentalists, students, and Native rights groups, and Occupy New Zealand. During the demonstration, Jane Kelsey, University of Auckland professor and head of the It's Our Future Campaign, and Lori Wallach of Public Citizen delivered signatures from a petition hosted by Avaaz to the lead Kiwi negotiator, which demands more transparency in the TPP, as well as the how it could undermine Internet freedom.

TPP and the Impact on the Blind

Despite these frustrating new restrictions, we did have some opportunities to see trade delegates and discuss how proposed copyright provisions could fundamentally and negatively impact every day uses of tech and digital access to information. One evening, InternetNZ and the Fair Deal Coalition set up a tour for any interested delegates to take a tour of the facilities of the Royal New Zealand Foundation for the Blind (RNZFB). One of their main services is to provide the blind and people with visual impairments with access to books and magazines: these include reprinting books into large print or braille, recording voice actors reading books for audio listening, and burning CDs with these audiobooks to send to their members similar to how Netflix has done with DVD rentals.

Throughout the tour, RNZFB staff reiterated the importance of a provision in New Zealand's Copyright Act of 1994, which legally permits them to carry on with their work. Section 69 is an exception to the copyright law that allows them to adapt works for people with print disabilities, without explicit permission from the publishers, so long as they provide official notification.

But TPP and its vague language on copyright exceptions and limitations could make their whole operation illegal and also undermine the positive agenda on exceptions and limitations that is moving within the World Intellectual Property Organization (WIPO). They are already required to carefully navigate copyright protections, but ever more restrictions could make it more difficult for them to do their job and provide the blind with access to literature and culture. 

This is one of hundreds of real life examples of how overly-restrictive copyright already impact the lives of millions of people. The TPP would make things even worse. The current timeline for concluded talks is now scheduled for October 2013, but based on the stakeholder briefing, it seems that many of the provisions we oppose are still highly contentious and unsettled. Our fear is that those undecided issues will be negotiated last minute in an equally secretive, political meeting that will come down each country's priority trade issues.

TPP and the Impact on Fair Use

InternetNZ, our local host, organized a luncheon for intellectual property delegates on Saturday. The event was opened by Prof. Susy Frankel, who focused on how exceptions and limitations are important for development and how the three-step-test is used as in rhetoric to actually limit countries flexibilities. Carolina Rossini from EFF argued the importance of fair use for economic growth and developement, focusing her presentation on studies from the US, Australia, and Singapore that show how fair use and exceptions and limitations contribute to the generation of jobs and GDP growth. The three studies affirm that less copyright restrictions actually benefit the economy. The counterfactual impact analysis results for these studies show that fair use policy is actually correlated with higher economic growth rates in private copying technology industries, while having a very limited impact on copyright industries.

Moving Ahead

More than in any previous round, discussions highlighted the copyright aspect of the TPP and its effect on digital access. That's in large part thanks to InternetNZ, which coordinated many local meetings and events to engage the public on these issues. However, it is also an indication of the growing strength of ties between digital rights groups around the world. While the TPP may affect each national copyright regime in varying ways, we recognize our common goal to defeat such threats to the Internet. The trade authorities who enable ever-increasing secrecy should know that this will only make us more determined.

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